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UNITED STATES v. MENSIK

December 31, 1971

UNITED STATES of America, Plaintiff,
v.
Charles Oran MENSIK, Defendant


Muir, District Judge.


The opinion of the court was delivered by: MUIR

Before the Court are three motions in this action brought by the United States to reduce to judgment certain unpaid federal tax claims outstanding against Defendant for the years 1953, 1954, 1955, 1956, and 1960. The Defendant, proceeding pro se, has moved to dismiss the complaint, and the Government has moved for summary judgment and to amend the complaint.

 The Government then filed the instant Motion for Summary Judgment. In view of the Government's motion, trial of the case was continued generally. Thereafter, the Government submitted affidavits in support of its Motion for Summary Judgment on July 16, 1971, and November 3, 1971. On November 3, 1971, the Government moved to amend its complaint (1) to enlarge its prayer for relief to include the assessment and demand for additional taxes and interest to and including October 6, 1971, in the sum of $31,966.28; (2) to add an allegation that the assessment made on May 16, 1969, was timely because the taxpayer signed a Tax Collection Waiver; and (3) to amend its total claim from $1,611,636.97 to $1,643,603.25.

 The record papers indicate that Defendant's copies of the Government's "Further Affidavit In Support of Motion for Summary Judgment," "Memorandum in Support of Plaintiff's Motion for Leave to Amend the Complaint," and "Motion for Leave to Amend the Complaint" were served on Defendant by leaving the copies with Richard Engle, Superintendent of the Federal Prison Camp, Allenwood, Pennsylvania. The Marshall's return of November 4, 1971, contains a note to the effect that Mensik had escaped from the Prison Camp theretofore. Defendant has filed no papers opposing the Government's Motion for Summary Judgment.

 1. Motion to Dismiss.

 Defendant's pleading entitled "motion to dismiss" denies liability in the amount of $1,611,636.97 and requests the Court "to order the government prepare a typewritten report that includes all items for each year, the amount due, the amount of penalty and the amount of interest for each transaction" on pain of dismissal of the complaint. In the third paragraph of the motion, Defendant requests "copies . . . of all reports papers of examinations introduced as evidence in the legal proceedings" and moves the Court to "defer judgments and orders until the defendant is released from prison, as he would not be able to defend himself properly, as the defendant's rights under the Constitution and laws of the United States would be violated."

 Construed liberally, *fn2" the motion raises as a defense to the action Defendant's status (at the time the Motion to Dismiss was filed) as a federal prisoner. The officials at the Lewisburg Penitentiary have reported to the Court that Mensik escaped on October 11, 1971, and is still at large.

 There is some law that dismissal of a civil suit is not required merely because the defendant is incarcerated. *fn3" Assuming arguendo, however, that imprisonment would be a valid reason to defer action until Defendant is released from imprisonment, we conclude that Defendant's continuing escape waives this point. Therefore, Defendant's motion to dismiss will be denied.

 2. Motion for Summary Judgment.

 The Government has moved pursuant to F.R.Civ.P. 56 for summary judgment on the basis of the pleadings and affidavits. Summary judgment is proper if the record, which for this purpose consists of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits," *fn4" shows there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Defendant has filed no affidavits in opposition to the motion for summary judgment. In his Answer, Defendant denied liability for taxes in the amount sued for. F.R.Civ.P. 56 (e) provides:

 
"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him."

 On a motion for summary judgment, the burden is upon the moving party to establish the lack of a triable issue of fact, and supporting affidavits may be insufficient to satisfy this burden even though the opposing party fails to present counter-affidavits. 6 Moore's Federal Practice, P56.11[3], 2170.

 Two affidavits accompany the Government's motion: (1) the affidavit of R. A. Wieber, Acting District Director of Internal Revenue, Chicago District, Chicago, Illinois, and (2) the affidavit of S. Martin Teel, a trial attorney with the Tax Division of the Department of Justice. The Government has also submitted as exhibits copies of three "Tax Collection Waivers" (Form 900), extending to December 31, 1969 the statute of limitations ...


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